Big Day in Top Court

This is a rush transcript from "Special Report," June 20, 2011. This copy may not be in its final form and may be updated.

SHANNON BREAM, ANCHOR: Before the break, we asked you should the U.S. Supreme Court be televised -- its sessions? 48 percent of you say yes, 52 percent say no. It's very close. And now a little bit on one of the cases they decided today.

(BEGIN VIDEO CLIP)

IAN MILLHISER, CENTER FOR AMERICAN PROGRESS: The core ho lding here is that it is better to have real experts in the EPA making a centralized decision as to what our environmental policy should be, rather than have individual federal judges who may lack the EPA's expertise making those decisions.

HANS VON SPAKOVSKY, HERITAGE FOUNDATION: This wasn't a five-four decision. It was a unanimous Supreme Court. And the decision was written by Ruth Bader Ginsburg who is one of the most predictably liberal justices on the court. And they lost.

(END VIDEO CLIP)

BREAM: All right, we're back with our panel now to talk about three big decisions out of the court today. The first was this EPA ruling, Charles, which essentially the justices said these states can't go after the power companies they want to sue on specific state grounds and federal grounds. It's the job of the EPA to enforce.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: It belongs with experts. And that's where it ought to be. I think what the court is doing is reacting to 30 years of overregulating, over-legislating from the bench. In the '70s, '80s and the '90s you had federal judges managing desegregation in school districts in great detail, sequestering taxes, doing prison reform, deciding how many square feet a prisoner had to have, details which are absurd for any judge to do. So it's had all of this for 30, 40 years. This decided we're gonna stop that, let EPA experts do it, which is where it's gonna be. And if you find that it's the wrong ruling or something that you think is unconstitutional, then you sue.

BREAM: Right. The EPA decisions again, as you say, can wind up in federal court anyway. They are the agency that Congress has given the power to.

KRAUTHAMMER: Right.

BREAM: Alright, the other big opinion coming out today, of course, was Wal-Mart. This group of -- it winded up being three plaintiffs, three women who wanted to sue, saying there wfas sex discrimination across the board at Wal-Mart. Wanted to take a certified class action of 1.5 million employees. The court said, they didn't have the right makeup to do a class action. Juan, right or wrong decision today?

JUAN WILLIAMS, SENIOR EDITOR, THE HILL: Well, it's hard to say. I mean it's a five-four decision. And in this case, all the women on the court said it was the wrong decision. But all the men, obviously, except for Breyer went the other way. And what the men said was that there was not evidence that you could point at, that there was some centralized act or pattern of discrimination, given that Wal-Mart's all over the country and that managers in these locales have a lot to say about who is promoted and how they're paid.

But clearly, if you think about the workforce, the percentage of the workforce is overwhelming female; I think more than 70 percent. But if you look at the managers there you're under 30 percent. So there is a wide disjuncture there and I think that was the heart of the case. Now, the women's groups are up in arms, they feel that they have lost a major element here because obviously Wal-Mart is better able to handle individual cases. And it's quite a burden on the individual litigant to ask them to go up against a giant like Wal-Mart.

BREAM: Yeah, and Jonathan, to be clear, obviously, these women can continue to sue, whether it's an individual suit or smaller level class action suits, maybe not 1.5 million; roping in women who, many of them, maybe never had a complaint against Wal-Mart So the legal fight is not over.

JONATHAN WEISMAN, WALL STREET JOURNAL: No, but, as Juan said, it becomes a lot easier for Wal-Mart. I mean these class action suits, they've got a lot more power to investigate and to really build their case. And of course, you've got these massive class action law firms that are built for these national cases. They're not gonna take one or two litigants at a time. This is a very, very big win for Wal-Mart. But it's a five-four decision, so don't think that this is a settled matter.

BREAM: Yeah and Charles, it opens this court up to the continuing criticism that is built in recent years under the Chief Justice John Roberts that it's very pro- business to a fault.

KRAUTHAMMER: Well look, in the one part of the ruling it was eight- nothing, which was that this was an incorrectly drawn class action, so it was tossed out by everybody, left and right. In the narrow ruling over whether this was an example of discrimination, Scalia writing on behalf of the majority utterly destroyed the other side. He was saying that Wal-Mart has a policy against discrimination. So how did the other side claim that there was actual company-wide discrimination on the basis of another policy, which allows a lot of discretion among the managers. And there was a theory that these managers absorb unconsciously the prejudices of where they live and thus, Wal-Mart allowed this to be expressed. This was utterly, sort of, unconvincing to Scalia, I think to anybody who reads this. And it was a correct decision.

Ironically, if you are, if you are a litigant, you had to wait a decade in order to bring a case, because this was a class action suit. So now it will actually allow individuals to go and to sue who had to sit outside and wait.

WILLIAMS: Well, ya know, I think there are patterns and practices and it's very crucial for groups that are vulnerable, women, minorities, et cetera. They're trying to get some repair of damages and discrimination that was done. I said under 30 percent. I see here in my notes, it's about 33 percent of the workforce. But 70 percent are in the workforce and are not getting these opportunities. From that perspective, I think it is a devastating blow to the chances of any of these litigants to ever prevail over Wal-Mart.

BREAM: All right, we're out of time, but just to mention the third decision today not to take the case of ACORN, the court turned it down. ACORN wanted to sue over the fact that Congress decided to defund it. The Supreme Court won't take up that case.

Alright, that is it for the panel, but stay tuned. A pileup on a New York highway and the familiar face who was behind the wheel. Up next.

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